426 Phil. 463
KAPUNAN, J.:
That in or about the period comprised from August 1991 to April 1993, in the Municipality of Lubao, province of Pampanga, Philippines and within the jurisdiction of this honorable Court, the above-named accused GLORIA OCAMPO-PAULE received from Felicita[s] M. Calilung various pieces of jewelry with a total value of ONE HUNDRED SIXTY FIVE (sic) THOUSAND THREE HUNDRED FORTY SEVEN (P163,347.00) PESOS, Philippine Currency for purposes of selling the same under the express obligation of turning over and accounting for the proceeds of said jewelry if not sold, to the said Felicita[s] U. Calilung within two (2) months from receipt hereof, once in possession of the said jewelry and far from complying with her obligation aforesaid, the said accused, did then and there willfully, unlawfully and feloniously, misappropriate, misapply and convert the said amount to her own personal use and benefit to the damage and prejudice of said complainant in the total sum of P163,347.00, Philippine currency.Petitioner pleaded Not Guilty to the charge. After trial, the lower court rendered a Decision on August 17, 1998 finding petitioner guilty of estafa.
All contrary to law.[2]
WHEREFORE, premises considered, the instant appeal is hereby DISMISSED and the assailed decision is hereby AFFIRMED in toto.Hence, the instant petition.
SO ORDERED.[4]
Art. 315. Swindling. (estafa).—any person who shall defraud another by any of the means mentioned herein below shall be punished by:The elements of estafa with abuse of confidence under this paragraph are: (1) that money, goods or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; (2) that there be misappropriation or conversion of such money or property of the offender; or denial on his part of such receipt; (3) that such misappropriation or conversion or denial to the prejudice of another; and (4) that there is a demand made by the offended party to the offender.[8]xxx
1. With unfaithfulness or abuse of confidence, namely:(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money goods or other property.
These elements were amply and clearly established in this case, First, accused received the jewelry for the purpose of selling the same under an express obligation to remit to complainant the proceeds thereof or to return those she is unable to sell thereby creating a fiduciary relationship between the[m]. Second, accused misappropriated the jewelry as shown by the fact that she failed to return the same or the proceeds thereof despite demand and Third, the misappropriation prejudiced the private complainant.[9]The rule is that factual findings of the Court of Appeals are conclusive on the parties on and this Court, and carry even more weight when the appellate court affirms the factual findings of the trial court.[10] The Court finds no reason to depart from the foregoing rule, considering that the evidence on record supports the conclusion of both the trial and the appellate courts that petitioner is liable for estafa with abuse of confidence under Article 315, paragraph 1(b) of the Revised Penal Code.
Novation, in its broad concept, may either be extinctive or modificatory. It is extinctive when an old obligation is terminated by the creation of a new obligation that takes the place of the former; it is merely modificatory when the old obligation subsists to the extent it remains compatible with the amendatory agreement. xxxThe execution of the Kasunduan sa Bayaran does not constitute a novation of the original agreement between petitioner and private complainant. Said Kasunduan did not change the object or principal conditions of the contract between them. The change in manner of payment of petitioner’s obligation did not render the Kasunduan incompatible with the original agreement, and hence, did not extinguish petitioner’s liability to remit the proceeds of the sale of the jewelry or to return the same to private complainant. As this Court held in Velasquez vs. Court of Appeals:[14]
Novation is never presumed, and the animus novandi, whether totally or partially, must appear by express agreement of the parties, or by their acts that are too clear and unequivocal to be mistaken.
The extinguishment of the old obligation by the new one is a necessary element of novation which may be effected either expressly or impliedly. The term “expressly” means that the contracting parties incontrovertibly disclose that their object in executing the new contract is to extinguish the old one. Upon the other hand, no specific form is required for an implied novation, and all that is prescribed by law would be an incompatibility between the two contracts. While there is really no hard and fast rule to determine what might constitute to be a sufficient change that can bring about novation, the touchstone for contrareity, however, would be an irreconcilable incompatibility between the old and the new obligations.
xxx The test of incompatibility is whether or not the two obligations can stand together, each one having its independent existence. If they cannot, they are incompatible and the latter obligation novates the first. Corollarily, changes that breed incompatibility must be essential in nature and not merely accidental. The incompatibility must take place in any of the essential elements of the obligation, such as its object, cause or principal conditions thereof; otherwise, the change would be merely modificatory in nature and insufficient to extinguish the original obligation.[13]
An obligation to pay a sum of money is not novated, in a new instrument wherein the old is ratified, by changing only the terms of payment and adding other obligations not incompatible with the old one, or wherein the old contract is merely supplemented by the new one.[15]In any case, novation is not one of the grounds prescribed by the Revised Penal Code for the guishment of criminal liability.[16]